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Wednesday, 27 May 1942


Mr BLACKBURN (Bourke) . - I have been in politics for 21 years, for thirteen of which I was in the Parliament of Victoria, the remainder of the period having been spent in this Parliament. I mention that only in order to show that I have watched the working of our system of government in Australia from the stand-points of both the States and the Commonwealth. The distressing and humiliating feature of Australian public life is the failure of the States and the Commonwealth to work together. Since the great trial of strength that took place in the sixties, the States and the Federal Government of America have worked together, and federal policies are very largely given effect through State agencies. That, in some degree, should be the position in Australia. The Commonwealth, in the present crisis, has failed to make as much use as might have been made of the States and municipalities. In this House, antagonism, mingled with contempt, is the popular attitude towards the States. Before this debate began the honorable member for Hunter (Mr. James) asked, " When are .we going to get rid of this fungus growth - the States ? " Expressed in extreme language that is the attitude of a number of members of the Commonwealth Parliament.. They believe that the States have no right to exist ; that they exist only by the toleration of this Parliament, and ought to be abolished as soon as possible, by any means that are available. This would suit a number of people in the States of New South Wales and Victoria, because those are' the largest States and would dominate this House. The Senate would not be so important, as a government could be constituted and would be responsible to the House of Representatives. But that is not the feeling in the smaller States. Nine years ago, a referendum was held in the State of Western Australia, and all except a handful of the people voted for an alteration of the Constitution which would make it more satisfactory to that State. Two-thirds of the people voted for the secession of Western Australia from the Commonwealth, and nearly the whole of the remaining one-third voted for the convening of a. representative convention to remodel the Australian Constitution on lines which they considered would be more favorable to the States. Yet we are told that Western Australia and Queensland are the frontier States, where the brunt of the war is being borne for the salvation and security of Victoria and New South Wales! If they are the frontier States - as I believe they are - what reason have we for assuming that the members of the Parliaments and the Governments of those States are any less patriotic, any less anxious to- assist the war effort, than are we people of Canberra? With one exception, every member of both branches of the legislature of Western Australia voted against these proposals; and in Queensland, Labour opinion is unanimously against them. Thus, in those States where the danger i; greatest, the people are opposed to what 1 regard as a violation of the Constitution. Oh that ground, also, I am opposed to them: The Leader of the Opposition (Mr. Fadden spoke as though the constitutionality of these proposals are not a concern of this House. Apparently, according to the right honorable gentleman, we should throw our bills into the air, like cats, as Charles Fox threw his sentences, hoping that they will land on their feet, when they reach the High Court. That is not the way in which legislation should be passed in this Parliament. It is quite true that members of .Parliament in Australia are not bound by an oath, as are members of the American Congress, to maintain the Constitution. Nevertheless, there is on us the obligation to oppose measures which we believe to be a violation of the Constitution. I favour a liberal construction of our Constitution, but do not consider that it is my duty to vote for something which in my opinion is intended to destroy its whole nature. If the Constitution is to be changed - and I think that it should be - then the change should be made by a vote of the people. To attempt to destroy its essence without consulting the people, is to violate the spirit, and probably also the letter, of it. What do these measures propose? They do not say that the States , shall not impose income tax. But they say that the States shall be deprived of the officials, offices and equipment, by means of which they at present assess and collect income tax; that the Commonwealth will impose an income tax that will raise not, only all that the Commonwealth needs, but also an additional £34,000,000 to meet the requirements of the States; that any State that refrains from imposing income tax shall receive financial assistance from the Commonwealth; and that any State that persists in imposing income tax may not collect one penny of it until the Commonwealth has been paid in full. There is no doubt that this scheme bears upon its face the Treasurer's acknowledgment that it is intended to raise the whole of the Commonwealth's requirements, and all the requirements of the States, insofar as these can properly be raised by means of income tax. Now it is said, "If you like, after that, to impose income taxation, you are free to do it, but if you do, you will not get any of this £34,000,000, nor will you get paid until we have received every penny of the immense sura due to us. If you do not impose income taxation, we shall give you financial assistance under section 96 of the Constitution, which gives us power to grant such assistance or withhold it as we like ". It seems to me that if the Commonwealth Government has power to do that at this time, it has power to do it at any time, not only as to income tax, but as to every form of taxation. And it seems true that if such action can be upheld before the High Court, it will be upheld, not on the ground that it is a war measure, but on the ground that the Commonwealth always possesses such power. And that result, I believe, however achieved, is a violation of the Constitution.


Mr Spender - If it, is within the constitutional powers of the Government to do this thing, how can the doing of it be a violation of the Constitution?


Mr BLACKBURN - As the Chief Justice has pointed out, it is sometimes possible, by means of some device, to evade deliberately imposed constitutional restrictions. I think I can say that all the framers of the Constitution, and all those who have spoken on this subject, have said that this thing cannot be done. I also point to the fact that there have been very strong recent expressions of judicial opinion by the right honorable the Attorney-General, when on the Bench, and by Justice Sir Owen Dixon on this point, and the matter will be going before a High Court bereft of the assistance of both those great authorities.

The Constitution of Australia is really the creature of the Australian people. It is an instrument forged by the people for their own government, and it provides that it may be amended in a manner which requires the assent of the people by a certain majority. I believe that any attempt to alter the fundamental structure of the Constitution without consulting the people is a violation of the Constitution. The honorable member for Warringah (Mr. Spender) asked how the Government's proposed action could be a violation of the Constitution if it were valid, but so far there is only the assumption that it is valid. No one can predict what the High Court will do, but every attempt is being made by the Government to discourage the States from appealing to the High Court. The Government is doing what the testator does who says to the beneficiaries in his will, "I shall leave you £5,000 on condition that you do not contest the will, but if you do con test it, you shall receive only £5 ". That is an attempt to prevent the beneficiaries from contesting the will. The Government, similarly, is seeking to prevent the States from testing the constitutionality of these measures before the High Court.


Mr SCULLIN (YARRA, VICTORIA) - How is it doing that?


Mr BLACKBURN - The first step is to impose taxation which will raise £34,000,000 for distribution among the States, on condition that the States do not themselves raise income taxation. The States, in order to challenge the measure, will impose income tax, and, having imposed it, will forfeit their right to assistance from the Commonwealth.







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